FINAL DETERMINATION

IN THE MATTER OF :
:
TRICIA MEZZACAPPA, :
Requester :
:
v. : Docket No: AP 2020-0337
:
BOROUGH OF WEST EASTON, :
Respondent :

INTRODUCTION

Tricia Mezzacappa (“Requester”) submitted a request (“Request”) to the Borough of West

Easton (“Borough”) pursuant to the Right-to-Know Law (“RTKL”), 65 P.S. §§ 67.101 et seq.,

seeking text messages to and from an identified Borough Councilman regarding his resignation.

The Borough denied the Request, arguing that no responsive records exist. The Requester

appealed to the Office of Open Records (“OOR”). For the reasons set forth in this Final

Determination, the appeal is denied, and the Borough is not required to take any further action.

FACTUAL BACKGROUND

On January 13, 2020, the Request was filed, seeking:

... all text messages sent from or received [by] Matthew Dees from any and all
persons, Council members, Solicitor, Mayor, employees, consultants and Nancy
Kutz, etc., that discussed his resignation from Council in September of 2019, an
subsequent recanting of the resignation, and appointment as Council President at
the January 6, 2020 Council meeting.

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Following a thirty day extension to respond to the Request, 65 P.S. § 67.902(b), on February 19,

2020, the Borough denied the Request, arguing that no records exist in the Borough’s possession,

custody or control.

On February 20, 2020, the Requester appealed to the OOR, challenging the denial and

stating grounds for disclosure.1 The OOR invited both parties to supplement the record and

directed the Borough to notify any third parties of their ability to participate in this appeal. 65 P.S.

§ 67.1101(c).

On March 3, 2020, the Borough submitted a position statement reiterating its grounds for

denial and also asserting that the Requester has modified the Request on appeal. In support of its

position, the Borough submitted the affidavit, made under penalty of perjury, of Joan Heebner, the

Borough’s Open Records Officer. The Borough also attached copies of emails in which Ms.

Heebner inquires of seven individuals whether they possess records responsive to the Request.

On March 3, 2020, the Requester submitted several position statements disputing the

Borough’s position that no responsive records exist, asserting that Councilman Dees made a public

statement on a website indicating that council members and citizens requested that he remain on

the Borough Council. The Requester also noted that the Borough has not inquired with Nancy

Kutz, a “close and loyal political ally” of persons involved. Finally, the Requester asserts that the

Borough has failed to indicate whether the requested records exist on Borough’s back up computer

system service EZ Micro Solutions.

On March 4, 2020,2 the Requester submitted a copy of an October 22, 2019 letter from

Councilman Dees, Vice President of West Easton Council, addressed to Ms. Heebner, withdrawing

1
The Requester granted the OOR an extension of time to issue the Final Determination until June 8, 2020.
2
On March 4, 2020, the OOR granted the Requester’s request that the record remain open in this matter until March
5, 2020.

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his resignation from Borough Council. The Requester argues that any statements to Councilman

Dees imploring him to rescind his resignation is agency business and, therefore, a public record.

The Requester requests that the OOR seek an affidavit from Councilman Dees addressing the non-

existence of responsive records.

Also, on March 4, 2020, the Borough submitted a supplemental position statement

disputing the Requester’s assertions in her March 4, 2020 submission.

On May 20, 2020, in response to the OOR’s request for additional evidence, the Borough

submitted the attestation of Councilman Dees and the supplemental attestation of Ms. Heebner.

LEGAL ANALYSIS

“The objective of the Right to Know Law ... is to empower citizens by affording them

access to information concerning the activities of their government.” SWB Yankees L.L.C. v.

Wintermantel, 45 A.3d 1029, 1041 (Pa. 2012). Further, this important open-government law is

“designed to promote access to official government information in order to prohibit secrets,

scrutinize the actions of public officials and make public officials accountable for their

actions.” Bowling v. Office of Open Records, 990 A.2d 813, 824 (Pa. Commw. Ct. 2010), aff’d 75

A.3d 453 (Pa. 2013).

The OOR is authorized to hear appeals for all Commonwealth and local agencies. See 65

P.S. § 67.503(a). An appeals officer is required “to review all information filed relating to the

request” and may consider testimony, evidence and documents that are reasonably probative and

relevant to the matter at issue. 65 P.S. § 67.1102(a)(2). An appeals officer may conduct a hearing

to resolve an appeal. The law also states that an appeals officer may admit into evidence testimony,

evidence and documents that the appeals officer believes to be reasonably probative and relevant

to an issue in dispute. Id. The decision to hold a hearing is discretionary and non-appealable. Id.;

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Giurintano v. Pa. Dep’t of Gen. Servs., 20 A.3d 613, 617 (Pa. Commw. Ct. 2011). Here, the parties

did not request a hearing; however, the OOR has the necessary information and evidence before it

to properly adjudicate the matter.

The Borough is a local agency subject to the RTKL that is required to disclose public

records. 65 P.S. § 67.302. Records in the possession of a local agency are presumed public unless

exempt under the RTKL or other law or protected by a privilege, judicial order or decree. See 65

P.S. § 67.305. Upon receipt of a request, an agency is required to assess whether a record requested

is within its possession, custody or control and respond within five business days. 65 P.S. § 67.901.

An agency bears the burden of proving the applicability of any cited exemptions. See 65 P.S. §

67.708(b).

Section 708 of the RTKL places the burden of proof on the public body to demonstrate that

a record is exempt. In pertinent part, Section 708(a) states: “(1) The burden of proving that a

record of a Commonwealth agency or local agency is exempt from public access shall be on the

Commonwealth agency or local agency receiving a request by a preponderance of the

evidence.” 65 P.S. § 67.708(a)(1). Preponderance of the evidence has been defined as “such proof

as leads the fact-finder … to find that the existence of a contested fact is more probable than its

nonexistence.” Pa. State Troopers Ass’n v. Scolforo, 18 A.3d 435, 439 (Pa. Commw. Ct. 2011)

(quoting Pa. Dep’t of Transp. v. Agric. Lands Condemnation Approval Bd., 5 A.3d 821, 827 (Pa.

Commw. Ct. 2010)). “The burden of proving a record does not exist ... is placed on the agency

responding to the right-to-know request.” Hodges v. Pa. Dep’t of Health, 29 A.3d 1190, 1192 (Pa.

Commw. Ct. 2011).

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 1. The Request cannot be modified on appeal

The Borough argues that the Requester has improperly modified the Request on appeal.

The Borough asserts that the Request seeks “all text messages sent from or received [by] Matthew

Dees...” and that the appeal states that the Request seeks “phone, texts and emails....” Based on a

review of the RTKL appeal form, the Requester states that the records at issue in this appeal are

“phone, texts and emails” of Councilman Dees. A comparison to a copy of the original Request

form provided with the appeal shows that the original Request only seeks text messages. A

requester may not modify, explain or expand upon a request on appeal. See Michak v. Dep’t of

Pub. Welfare, 56 A.3d 925 (Pa. Commw. Ct. 2012) (holding that “where a requestor requests a

specific type of record … the requestor may not, on appeal argue that an agency must instead

disclose a different record in response to the request”); Staley v. Pittsburgh Water and Sewer Auth.,

OOR Dkt. AP 2010-0275, 2010 PA O.O.R.D. LEXIS 256 (“A requester may not modify the

original request as the denial, if any, is premised upon the original request as written”). Therefore,

the OOR’s review on appeal is confined to the Request as written. See, e.g., Brown v. Pa. Turnpike

Comm’n, OOR Dkt. AP 2011-1287, 2011 PA O.O.R.D. LEXIS 998.

2. The Borough has proven that no responsive records exist

The Borough argues that no responsive text messages to and from an identified list of

individuals exist that discuss Councilman Dees’ resignation from Borough Council and subsequent

withdrawal of the resignation. Ms. Heebner attests that she is familiar with the Borough’s records

and upon receipt of the Request, she conducted a through examination of the Borough’s files. Ms.

Heebner further attests that “[t]he office staff, including [herself,] did not use texting to discuss

[the] Request....” Ms. Heebner “spoke to and/or emailed everyone mentioned in [the] [R]equest”

and “no one has any records that match [the] [R]equest.” Attached to the Borough’s submission

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are copies of email inquiries sent by Ms. Heebner to Janine Brown, Peter Mammana, David

Bolash, Paul James, Councilman Dees, Daniel DePaul, and Robert Mahady, 3 all of whom replied

that they did not have responsive records. Subsequently, during the course of the appeal, Ms.

Heebner submitted a copy of an email from Nancy Kutz, in which she also responds that she does

not have any responsive records. Ms. Heebner attests that, based upon her search of records, she

determined that no responsive records exist within the Borough’s possession, custody or control.

In response to OOR’s request for clarification, Councilman Dees attests that he “conducted

a thorough examination of the files in his possession, custody or control for records responsive to

the [R]equest[] ... [and], no responsive records exist.” More specifically, Councilman Dees attests

that, “as for the request for my text messages, referring to my personal website post, I have no

phone/text records that respond to [the Request]. I very seldom use text messaging for [B]orough

business .... In my personal post on my personal website, I did not state that I spoke with by phone,

emailed or texted anyone about either of these matters. I stated that I had members of Council

asking me to reconsider; I wrote, residents urged me to stay with one promising to call me

repeatedly and ‘nag’ me into changing my mind. Again, no phone records exist and I did not claim

any phone records existed in my post.” (Emphasis in original).

Also in response to the OOR’s request for clarification, Ms. Heebner submitted a

supplemental attestation providing additional detail on the Borough’s search. Ms. Heebner

confirmed that cellular phones are not provided to Borough Council members or the Mayor and

that only the Borough Manager, clerk and public works supervisor are provided “flip phones” for

the purpose of contacting one another if necessary. Ms. Heebner further attests that Councilman

Dees’ “resignation and subsequent retraction of that resignation ... documents were handed to me,

3
The individuals contacted by Ms. Heebner consists of Borough Council members, the Borough Mayor and the
Borough’s Chief of Police. See http://westeastonborough.com/ (last accessed on June 5, 2020).

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in person at the office, one sheet of paper each” and “that they had talked, in person at the office,

about hi[m] possibly resigning.” Under the RTKL, a statement made under made under the penalty

of perjury may serve as sufficient evidentiary support to sustain an agency’s burden of proof. See

Sherry v. Radnor Twp. Sch. Dist., 20 A.3d 515, 520-21 (Pa. Commw. Ct. 2011); Moore v. Office

of Open Records, 992 A.2d 907, 909 (Pa. Commw. Ct. 2010).

The Borough’s evidence establishes that Ms. Heebner, as the Open Records Officer,

inquired with Councilman Dees as to whether he had any text messages regarding his resignation

from Borough Council and his subsequent recantation that are responsive to the Request and he

replied that he did not possess any records. In addition, Ms. Heebner inquired of all the individuals

listed in the Request as senders or recipients of text messages to or from Councilman Dees

regarding the same subject matter. See generally Hays v. Pa. State Police, OOR Dkt. AP 2015-

0193, 2015 PA O.O.R.D. LEXIS 294 (finding that an agency conducted a good faith search by

“contact[ing] the [b]ureau most likely to possess responsive records, and ... explain[ing] why that

[b]ureau is most likely to possess those records”). Accordingly, based on the evidence provided,

the Borough has proven that the text messages sought do not exist within its possession, custody

or control.

CONCLUSION

For the foregoing reasons, the appeal is denied, and the Borough is not required to take

any further action. This Final Determination is binding on all parties. Within thirty days of the

mailing date of this Final Determination, any party may appeal to Northampton County Court of

Common Pleas. 65 P.S. § 67.1302(a). All parties must be served with notice of the appeal. The

OOR also shall be served notice and have an opportunity to respond as per Section 1303 of the

RTKL. 65 P.S. § 67.1303. However, as the quasi-judicial tribunal adjudicating this matter, the

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OOR is not a proper party to any appeal and should not be named as a party. 4 This Final

Determination shall be placed on the OOR website at: http://openrecords.pa.gov.

FINAL DETERMINATION ISSUED AND MAILED: June 5, 2020

/s/ Kelly C. Isenberg

_________________________
APPEALS OFFICER
KELLY C. ISENBERG, ESQ.

Sent to: Tricia Mezzacappa (via email only);

Joan Heebner (via email only)

4
Padgett v. Pa. State Police, 73 A.3d 644, 648 n.5 (Pa. Commw. Ct. 2013).